Subject of the Decision
In its decision numbered 2018/163E. 2020/13K. and dated 19.02.2020, Constitutional Court examined the allegation that the provision added to the second paragraph of the Article 1 of the Law No 4045 Security Investigation, Reinstatement of the Rights of Civil Officers Who Have Been Dismissed for Some Reasons and Those Who Are Not Induct Public Service with Article 29 of the Law on the Amendment of Highways Traffic Law No. 7148 and Some Laws, that authorizes public authorities to conduct security investigations and archive investigations in applications for public service was conflicting with constitution.
Applicants stated that the added provision gives unlimited access to personal data, data collection, classification, processing and evaluation of the information of the person wishing to enter public service, that it imposes an unpredictable restriction on the right to enter public service and should contain assurance and legal certainty regarding the provision, use, processing, accessing of information, hiding information, reason of provision, deletion/alteration of information, prevention of misuse of information in the form of personal data as the reason for request of cancellation and claimed that the provision was unconstitutional. The paragraph subject to the decision is as follows:
“Units responsible for conducting security investigations and archive research are authorized to receive information and documents from archives of ministries, public institutions and organizations and electronic data processing centers, to access the records kept within the scope of the fifth paragraph of the Article 171 and thirteenth paragraph of the Article 231 of the Code of Criminal Procedure numbered 5271 and dated 4/12/2004, to take the results of the investigation carried out by the Chief Public Prosecutor’s Office, decisions of non-prosecution, and the finalized decisions of the court, within the scope of security investigation and archive research.”
In its examination, The Constitutional Court first explained that Article 171 of the Code of Criminal Procedure (CCP) mentioned in the added provision is related to the public prosecutor’s discretion in filed a public lawsuit, to decide to adjourned the public lawsuit and that decisions to adjourned the public lawsuit were recorded in a system and stated that the request for information from this system could be made by the prosecutor, judge or court under an investigation or prosecution. Again, the Constitutional Court stated that in accordance Article 231 of CCP, it would be possible to decide deferment of the announcement of the verdict, that in this case these decisions were also recorded in a system and that the request for information from this system could be requested by the prosecutor, judge or court within the scope of investigation or prosecution and that this information could not be used for any other purpose.
The Constitutional Court made the examination on the subject within the scope of Articles 13 and 20 of the Constitution. According to the Article 20 of the Constitution, everyone has the right to request respect for his private and family life and their privacy cannot be touched. Pursuant to the last paragraph of this article, “Everyone has the right to request the protection of his/her personal data. This right includes being informed of, having access to and requesting the correction and deletion of his/her personal data, and to be informed whether these are used in consistency with envisaged objectives. Personal data can be processed only in cases envisaged by law or by the person’s explicit consent. The principles and procedures regarding the protection of personal data shall be laid down in law.” As it is mentioned in the decision of the Constitutional Court “The right to request protection of personal data aims to protect the rights and freedoms of the individual during the processing of personal data, as a special form of the right to protection of human dignity and the ability to develop personality freely.”
In its settled case-law, The Constitutional Court defines personal data as “…Not only information that reveals the identity of the individual, such as his name, surname, date of birth and place of birth; all data that makes the person identifiable directly or indirectly such as phone number, motor vehicle license plate, social security number, passport number, curriculum vitae, picture, image and sound recordings, fingerprints, IP address, e-mail address, hobbies, preferences, interacting people, group memberships, family information, health information…” In this context, it is clear that the data to be obtained as a result of security investigation and archive research are personal data and considering that it gives the opportunity to access and examine these records, it is clear that the added provision restricts the right to request protection of personal data. In its decision, The Constitutional Court stated that the Article 13 of the Constitution regulates that fundamental rights and freedoms can only be restricted by law and that the legal regulations restrict fundamental rights and freedoms should be clear, sharp, understandable, practical and objective in accordance with Article 2 of the Constitution, without any doubts regarding persons and administration and also stated that it should include protective measures against arbitrary treatment of public authorities. These issues are also mandatory factors for ensuring legal security. In this context, the legal regulation that will restrict the right to request protection of personal data should not only exist in appearance but should be specific, accessible and predictable.
Article 129 of the Constitution concerns the obligation of civil servants and public officers to act in accordance with the constitution and laws and recognizes the discretion of bringing regulations to the legislator in terms of security investigations and archive research for those who will work in public service. However, the Constitutional Court stated in its decision that these regulations should clearly demonstrate under what circumstances and within what limits, and to provide adequate safeguards against possible abuse, to which public authorities are empowered to enforce measures and to exercise respect for the right to respect for private life and stated that there was no regulation regarding these issues in the decision subject to review and that authorization was given without specifying certain arbitrary and predictable legal safeguards.
Due to the reasons explained foregoing, the Constitutional Court was evaluated that the provision constitutes a violation of the Articles 13 and 20 of the Constitution and that the cancellation is required and decided to CANCEL the provision.